With a large number of federal judges rushing to rule that states must redefine marriage to include same-sex couples over the last year has come a claim by advocates that the legal theory enjoys bipartisan support. Of course, federal judges are not elected with formal party identification, so what this means is that judges appointed by presidents of both political parties support same-sex marriage. This is technically true, since judges appointed by both Republicans and Democrats have ruled that states must change their marriage laws.
But looking more closely at the cases presents a different picture. Of the 39 judges who have ruled in these cases since the U.S. Supreme Court struck down the Defense of Marriage Act in the summer of 2013, 33 have ruled in favor of redefinition and six against.
Of the six, all but one (from Puerto Rico, appointed by President Jimmy Carter) were appointed by Republicans.
Of the 33 favoring redefining marriage, 28 were appointed by Democrats. Fourteen were appointed by President Barack Obama, twelve by President Bill Clinton and two by President Jimmy Carter. Of the five Republicans favoring same-sex marriage, three were appointed by President George H.W. Bush, two by President George W. Bush and one by President Ronald Reagan.
What’s immediately striking about this is how many judges appointed by Democrats heard cases: 29 of 39. If my back-of-the-envelope calculations are right, plaintiffs challenging a marriage law in federal court have a 28 in 29 chance of winning if the judge on their case is a Democrat. (Perhaps 97 percent.) If the judge is a Republican, there is a 50 percent chance.
So, while there’s definitely support for the position that courts should create a national definition of marriage among judges appointed by Republicans and Democrats, being appointed by a Republican president is associated with a judge’s being open to allowing a state to retain its understanding of marriage as the as the union of a husband and wife and being appointed with a Democrat is associated with almost no support for that proposition.